Big Brother is watching you. Recently, our government granted itself permission to fly unmanned drones within the United States to monitor citizen “activity”. Recently, our government complained about the introduction of internet protocol version 6 (IPv6) because–unlike the current version IPv4–the new version will make it extremely difficult for the government to track IP addresses back to individual internet users (thus, how can you catch child porn watchers? How can you secretly monitor citizen activities? I’m sure they’ll think of something…). And even right in our backyard, our local police are attempting to pry medical information from our doctors–just to make sure we’re not violating Florida’s precious prescription drug laws.
Here’s the deal. Ever since I was born (1968, fyi), this country has been at war. The war on drugs is still chugging away. Part of this war involves prescription drugs. The ground troops are local cops who are examining everyone’s pharmacy records, because these records are not considered “private” enough to warrant the same protections as medical records. Yea, I know what you’re thinking–you thought that stuff was just between your doctor and pharmacist? Think again.
Here’s how this goes down. The police obtain pharmacy records, looking for multiple prescriptions of drugs like Oxycodone and Xanax. When they reach that “ah ha!” moment and discover multiple prescriptions from different doctors, law enforcement pays a little visit to your doctor’s office and asks a few questions to see if, maybe, you’ve been doctor shopping and drug trafficking. Your doctor’s answers to four simple questions can give rise to a felony doctor shopping case, an obtaining prescription drug by fraud case, and a trafficking in controlled substances case. The questions posed to the doctor are: (1) is this suspect a patient, (2) did the doctor prescribe a controlled substance to the suspect, (3) did the suspect disclose the receipt of a prescription for a controlled substance from another doctor within the preceding thirty days, and (4) would the doctor have prescribed the controlled substance if the doctor had known that the suspect had received a prescription for a controlled substance within the preceding thirty days. From Hay v. State, 79 So.3d 852 (Fla. 2nd DCA 2012).
Do you see the problem with this line of questioning? A government official has just used his shiny badge to obtain confidential medical information about you. Are we in China? Is this legal?
The real life example of this scenario played out in Hay v. State. The husband and wife team of Mr. and Mrs. Hay pled guilty to trafficking in a controlled substance, and obtaining a controlled substance by withholding information (doctor shopping). Mr. and Mrs. Hay filed a motion to suppress their doctor’s statements made to investigators during the investigation. Of course, these doctor statements led to their arrest. The motion was denied by the trial court, so the couple entered guilty pleas, but appealed the court’s ruling regarding the investigators tactics in obtaining their medical information.
The appeals court in Hay v. State agreed, finding that the lower court should have thrown out (suppressed) the information provided by the doctors because the questions violated state constitutional rights of privacy in our medical records. Thus, the defendant’s doctor provided prescription information, this information constituted medical records which are protected from disclosure. It follows that the information provided by the doctors about what information the couple had withheld from them also constituted medical reports that were protected from disclosure. Got all that?
So, are your medical records any safer than before? Are your privacy rights still intact? The real problem here is the way the investigator in Hay handled the matter. Had the officer simply went to a judge, explained in writing why he needed these medical records, the judge may have agreed and signed a court issued subpoena requiring the doctor to release this privileged information. This investigator in Hay didn’t take this important step, and you now know what happens when a government official ignores our Constitution.